I was videoed in my employer’s bathroom with my pants down! Can I sue for the psychological injuries?

Subject: Postiglione v Barry

Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.

I was videoed in my employer’s bathroom with my pants down! Can I sue for the psychological injuries I suffer as a result of the person who videoed me?

The question really is what constitutes a “dramatic impact” on daily activity need to prove psychological injury and sufficient emotional distress under New Jersey’s negligent infliction of emotional distress, intentional infliction of emotional distress and an invasion of privacy claims?

In this case the defendant, in a personal injury matter, was being sued because he walked into the women’s bathroom, stood in the stall next to the plaintiff, and placed his cell phone underneath the stall dividing wall and began filming the plaintiff as she was attempting to urinate in the toilet next to him. The plaintiff saw black boots, quickly dressed, and ran out of the bathroom to find other employees. As she returned she saw the other employee, defendant, walking out of the women’s bathroom with the very same black boots. The police were called and he was charged criminally.  Although the defendant was charged criminally with invasion of privacy and trespass, this employee sued the employer for negligent infliction of emotional distress, intentional infliction of emotional distress and a civil invasion of privacy claim.

All of these claims involve a tort (personal injury) which requires proof of actual damages. The case law requires  plaintiff to prove her severe emotional distress; in other words plaintiff must prove, or get over the summary judgment burden hurdle, by presenting evidence of a “dramatic  impact” on her activities or abilities to function.  Plaintiff  presented evidence that she was going to a psychologist for treatment and being diagnosed with a adjustment disorder, anxiety depression, and an acute stress.

The court turned to several cases which require the plaintiff to show that she suffers “emotional distress so severe that no reasonable person could be expected to endure it”. In other words, The plaintiff has to prove a dramatic impact on her daily activities and ability to function each day.

General regular psychiatric counseling is not enough.

In this day and age, this is not a peculiar case! These invasion of privacy claims are coming up more and more arising out of individuals using cell phones to send and receive sexually explicit photos, using the video camera capability to capture videos or pictures of somebody in privacy, and other privacy invasive types of videos and bathrooms, locker rooms and at home.

In an older separate case, involving video cameras in the men’s and women’s bathroom facing the sinks, that plaintiff testified that she avoided using restrooms at work and avoided eating and drinking during work hours because she did not trust the bathrooms at all. In that case the doctor testified the plaintiff suffered anxiety, hypoglycemia, and bladder distention, had difficulty focusing on her job, and had significant fear is of public bathrooms. The court later affirmed a dismissal of that case finding that the “type of trauma did not rise to the level necessary to prove sufficiently substantial emotional distress quote. In this case the plaintiff testified she did not seek additional psychiatric treatment after her initial consultations with the psychologist. The number of consultations was limited to two and the doctor wrote a report diagnosing the plaintiff with the adjustment disorder and post-traumatic stress disorder related to her anxiety and depression caused by the incident of the cell phone camera and the bathroom stop. The plaintiff testified that after these two initial consultation she did not intend to see future treatment, was not prescribed medication, did not attend regular therapy sessions, and went about her usual daily routine including work, work schedule, I did not miss any time from work there after. She also went on two vacations to California and Florida, New York and continue to use public bathrooms. She further testified that she did not change her daily routine as a result of this incident.  Ironically, plaintiff did testify she use the women’s locker rooms at the gym she attended and admitted she did not stop doing any activities because of this incident.

If this happened to you please call our office. We represent clients in all types of actions in New Jersey and are very interested in discussing your claim and your injury and your damages.

Jeffrey S. Hark, Esq.
609-471-1959. Cell
856-354-0050 Office